{ "id": 2818905, "name": "J. Young Scammon v. The Germania Insurance Company", "name_abbreviation": "Scammon v. Germania Insurance", "decision_date": "1881-11-10", "docket_number": "", "first_page": "621", "last_page": "627", "citations": [ { "type": "official", "cite": "101 Ill. 621" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "66 Pa. 9", "category": "reporters:state", "reporter": "Pa.", "opinion_index": -1 }, { "cite": "43 N. H. 621", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 4554247 ], "opinion_index": -1, "case_paths": [ "/nh/43/0621-01" ] }, { "cite": "75 Pa. St. 378", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1036719 ], "opinion_index": -1, "case_paths": [ "/pa/75/0378-01" ] }, { "cite": "29 Pa. St. 198", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 982836 ], "opinion_index": -1, "case_paths": [ "/pa/29/0198-01" ] }, { "cite": "7 Gray, 221", "category": "reporters:state", "reporter": "Gray", "opinion_index": -1 }, { "cite": "6 Metc. 295", "category": "reporters:state", "reporter": "Metc.", "opinion_index": -1 }, { "cite": "8 Gray, 33", "category": "reporters:state", "reporter": "Gray", "case_ids": [ 2079168 ], "opinion_index": -1, "case_paths": [ "/mass/74/0033-01" ] }, { "cite": "19 Hun, 239", "category": "reporters:state", "reporter": "Hun,", "opinion_index": -1 }, { "cite": "80 Ill. 389", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "11 Mo. 289", "category": "reporters:state", "reporter": "Mo.", "opinion_index": -1 }, { "cite": "9 Wend. 166", "category": "reporters:state", "reporter": "Wend.", "opinion_index": -1 }, { "cite": "18 Ill. 560", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "12 Wend. 452", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 11270654 ], "weight": 3, "opinion_index": -1, "case_paths": [ "/wend/12/0452-01" ] }, { "cite": "64 N. Y. 162", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2161910 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ny/64/0162-01" ] }, { "cite": "43 Iowa, 587", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2310685 ], "opinion_index": -1, "case_paths": [ "/iowa/43/0587-01" ] }, { "cite": "49 Ill. 106", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2602067 ], "opinion_index": -1, "case_paths": [ "/ill/49/0106-01" ] }, { "cite": "13 Wall. 233", "category": "reporters:scotus_early", "reporter": "Wall.", "opinion_index": -1 }, { "cite": "105 Mass. 570", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 713058 ], "opinion_index": -1, "case_paths": [ "/mass/105/0570-01" ] }, { "cite": "44 Wis. 201", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8704922 ], "opinion_index": -1, "case_paths": [ "/wis/44/0201-01" ] }, { "cite": "87 Ill. 70", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5341422 ], "opinion_index": -1, "case_paths": [ "/ill/87/0070-01" ] }, { "cite": "18 Ill. 553", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 438550 ], "opinion_index": 0, "case_paths": [ "/ill/18/0553-01" ] } ], "analysis": { "cardinality": 593, "char_count": 12897, "ocr_confidence": 0.499, "pagerank": { "raw": 3.734673593448771e-07, "percentile": 0.8944683647579453 }, "sha256": "d38256663f14e832142eb635d37f09fd404353bbcbdfd90f4260cc15c46d2d30", "simhash": "1:37702b48ea1dd615", "word_count": 2282 }, "last_updated": "2023-07-14T20:21:46.038154+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "J. Young Scammon v. The Germania Insurance Company." ], "opinions": [ { "text": "Mr. Justice Scott\ndelivered the opinion of the Court:\nThis action was brought on a policy of insurance issued by the Germania Fire Insurance Company to J. Young Scammon. The property covered by the policy was totally destroyed by fire on the 14th day of July, 1874. Notice of the loss was served on the local agent of the company on the 5th of August next thereafter, and by him transmitted to the office of the company, located in the city of New York. \u201cProofs of loss\u201d were delivered to the local agent at Chicago on the 23d day of April, 1875, and the same were by him transmitted to the general agent of the company at New York. It is not proven the \u201cproofs of loss\u201d reached the principal office of the company before the 10th of May, 1875. Under the date of the 12th of May, 1875, the general agent acknowledged the receipt at his office of the \u201cproofs of loss,\u201d and notified the assured \u201cthey were furnished too late.\u201d In case of loss, assured was obligated by a clause in the policy to \u201cforthwith give notice of said loss to the companies, through their general agent in the city of New York, and as soon after as possible render a particular account of such loss. \u201d The defence in the court below was placed mainly on the ground there had been no compliance by the assured with this clause of the policy. As respects the \u201cnotice of loss, \u201d whether it was given in apt time or not need not be considered, as there is another objection insisted upon that is fatal to any recovery in the present case.\nWhen \u201cproofs of loss, \u201d which the assured was obligated to furnish, were delivered to the agent of the companies in New York, objection was promptly made, and the assured notified \u201cthey were furnished too late.\u201d That raises the distinct question whether the proofs of loss in this case were furnished in time by assured to constitute a compliance with his insurance contract. The argument made is not inconsistent with the proposition there must be what is equivalent to a compliance with the provision of the policy requiring proofs of loss to be made, whatever that provision may mean, by furnishing proofs of loss to the company, before any action can be maintained on the policy; but the position is taken with a view to avoid the force of the provision, \u201cproofs of loss\u201d must be furnished as soon after the loss \u201cas possible.\u201d The clause of the policy requiring sworn proofs of loss is not introduced into the policy as a condition, or if there be an implied condition, the consequence of a non-observance is expressly stated, viz: the loss shall not be payable until such proofs are made, but not that the policy shall for that reason be forfeited, and hence it is insisted, as assured had one year from the time of loss within which to bring his action, to avail of which, and yet give the insurer' sixty days\u2019 notice before suit is brought, proofs of loss, under the policy, may be furnished to the company within ten months of the time of the loss. The argument on this branch of the case has for its support much that is ingenious, but it admits of' an answer warranted by a reasonable construction of the policy. Whether that clause of the policy requiring sworn proofs of loss to be made as soon after the loss \u201cas possible,\u201d shall be regarded as a condition, the non-observance of which would work a forfeiture or not, it is a part of the insurance contract, and there must be - what is an equivalent with a compliance with it before any action can be maintained upon the policy. A declaration on a policy having such a clause must contain an averment of compliance with its provisions, and proof must be made as to the same on the trial. Accordingly, in one count of the declaration in this case of the loss sustained it is averred \u201cplaintiff forthwith gave notice to defendant in writing, and as soon as possible thereafter, to-wit, on the same day, delivered to the defendant a partienlar account thereof; \u201d and in an amended count it is averred, when the loss occurred \u201cplaintiff forthwith gave notice to the defendant in writing, * * * and delivered to said defendant a particular account thereof. \u201d Had these averments been omitted, obviously the declaration would have been bad on demurrer, unless it had been averred the performance of these acts had been waived by defendant.\nWhat will be regarded as a compliance with the provisions of a policy containing the words, \u201cin case of loss assured shall forthwith give notice of said loss, * * * and as soon after as possible render a particular account of such loss, \u201d is often a question involved in much difficulty. Bach particular case is determined by the attending circumstances which distinguish it from other cases. That which would be regarded as a compliance with such a provision in a policy under some circumstances, under others might not be so regarded. This fact accounts, in a large measure, for the contrariety of decisions on this question. In this State, at least, the meaning of the words \u201cforthwith,\u201d and \u201cas soon after as possible, \u201d when employed in an insurance contract, as they are used in the policy declared on, has been definitely determined by previous decisions. They are understood to mean within \u201ca reasonable time,\u201d \u201cwithout unreasonable delay,\u201d and are the equivalent of \u201cdue diligence.\u201d Hence this rule, deducible from adjudged eases, is, if the act to be done is required to be \u201cforthwith, \u201d or \u201cas soon as possible, \u201d or \u201cimmediately, \u201d proof it were done with \u201cdue diligence,\u201d under the circumstances, and \u201cwithout unreasonable delay, \u201d will be deemed sufficient proof it were done in apt time. Peoria M. and F. Ins. Co. v. Lewis, 18 Ill. 553; Knickerbocker Ins. Co. v. Gould, 80 id. 388; Same v. McGinnis, 87 id. 70.\nConstruing the evidence most favorably for plaintiff, even under the liberal doctrine of the cases cited, it can not be insisted, with any show of reason, the \u201cproofs of loss\u201d were furnished within any \u201creasonable time, \u201d or \u201cwithout any unreasonable delay. \u201d If the delay suffered to intervene the loss and making proofs in this case would not bar the action on the policy under the circumstances proven, it would be difficult to conceive of a ease where delay in making \u201cproofs of loss\u201d would operate as a bar to the action. No attempt was made to furnish the company with proofs of loss until after the lapse of nine months from the time of loss, and no excuse is shown by the evidence that even tends to justify the delay. It is not claimed plaintiff was lulled to non-action by anything any officer or agent of the company did or said concerning \u201cproofs of loss.\u201d No waiver of the terms of the policy in this regard is insisted upon. Indeed, assured had no communication with any agent of the company on the subject, although the office of the local agent was near the office occupied by assured. Evidence appearing in this record, by stipulation, shows the proofs of loss were in fact made out within ten days after the loss occurred, and could have been served at any time, had assured elected to do so. The fact he was embarrassed by threatened proceedings in bankruptcy constitutes no valid excuse. No receiver had been appointed, and it was plainly the duty of assured to make proofs of the loss sustained. Where no circumstances are proven that justify the delay suffered to intervene, to hold that proofs of loss furnished nine months after the loss were furnished \u201cas soon as possible, \u201d would be to extend the rule further than is warranted by the authorities.\nThe findings of the courts whence this cause comes were warranted both by the law and the evidence, and the judgment will be affirmed.\nT . , Judgment affirmed.\nMr. Justice Dickey :\nI can not concur in this decision.\nThe policy nowhere provides that a failure to make proofs as soon as possible shall defeat a recovery. The penalty for such neglect is found in the provisions that payment for the loss can not be demanded until sixty days after proof of loss.", "type": "majority", "author": "Mr. Justice Scott Mr. Justice Dickey :" } ], "attorneys": [ "Mr. Francis H. Kales, for the appellant:", "Mr. Lawrence Proudfoot, for the appellee;" ], "corrections": "", "head_matter": "J. Young Scammon v. The Germania Insurance Company.\nFiled at Ottawa November 10, 1881\nRehearing denied March Term, 1882.\n1. Insurance\u2014policy construed as to time offwrnishing proofs of loss. Where an insurance policy provides, that \u201cin case of loss assured shall forthwith give notice of said loss, * * * and as soon after as possible render a particular account of such loss,\u201d the words \u201cforthwith,\" anti \u201cas soon as possible,\" will be construed to mean within \u201ca reasonable time,\u201d \u201cwithout unreasonable delay,\u201d and are the equivalent of \u201cdue diligence.\"\n2. Same\u2014delay to furnish proofs, when unreasonable. A policy of insurance required that notice of a loss should be given forthwith, and proofs of the particulars of the loss rendered as soon thereafter as possible, and payment was not to be made until sixty days after such proof. No attempt was made to furnish the company such proofs for more than nine months after a loss, and no excuse was shown for the delay:. Eeld, that the delay was unreasonable, and that no recovery could be had on the policy.\nAppeal from the Appellate Court for the First District;\u2014 heard in that court on appeal from the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.\nMr. Francis H. Kales, for the appellant:\nThe notice of loss in this case was served in apt time. Knickerbocker Ins. Co. v. McGinnis, 87 Ill. 70; Palmer v. Insurance Co. 44 Wis. 201; Sympson v. Henderson, 22 Eng. C. L. 313.\nThe cases cited are express authority that the word \u201cforthwith\u201d is not to be taken literally, but is to be construed to mean within a reasonable time.\nThe proofs of loss, in view of the provisions of the policy, v?ere made in good time. The words \u201cas soon as possible,\u201d mean within a reasonable time, under all the circumstances. See cases cited above, and Eastern R. R. Co. v. Relief, etc. Ins. Co. 105 Mass. 570.\nThe peculiar insurance contract in this case, if strictly . construed, gave to the plaintiff a reasonable time, before the expiration of ten months after the loss, provided there was early and timely notice of the loss. Such contracts being unipartite or unilateral, and filled with conditions inserted by persons skilled in the learning of insurance law, are to be liberally construed for the insured, and strictly as to the insurance company. Insurance Co. v. Wilkinson, 13 Wall. 233; Aurora Ins. Co. v. Eddy, 49 Ill. 106; Wood on Insurance, 140, 141, and cases there cited; Bliss on Life Insurance, 656.\nThe loss is not, by the terms of the policy, to be payable until the expiration of sixty days from the time of furnishing such proofs. The plaintiff is to have one year from the time of the loss within which to bring his suit,\u2014to avail himself of which, and yet give the insurer sixty days before suit brought, the proofs under the policy must be furnished to the company within ten months from the time of the loss. This construction can stand, if the words \u201cas soon after as possible,\u201d or \u201cforthwith,\u201d are held to mean a reasonable time; and, perhaps, in this case, where the consequences of delay in furnishing proofs of loss are expressly stated, to-wit: that the loss shall not be payable until they are furnished, the construction here suggested would stand, even if these expressions were taken literally.\nMr. Lawrence Proudfoot, for the appellee;\nAll of the adjudicated cases, without a single exception, hold that strict compliance with the provisions of the policy in regard to the serving of notice and the proofs of loss is a condition precedent, and that no action can be maintained unless this condition has been performed. Edgley v. Farmers\u2019 Fire Ins. Co. 43 Iowa, 587; Blossom v. Lycoming Fire Ins. Co. 64 N. Y. 162; Wood v. Worsley, 6 Term Rep. 710; Inman v. Western Fire Ins. Co. 12 Wend. 452.\nThe word \u201cforthwith\u201d means without unnecessary delay. May on Insurance, sec. 462; Peoria Marine and Fire Ins. Co. v. Lewis et al. 18 Ill. 560; Cornell v. LeRoy, 9 Wend. 166; St. Louis Ins. Co. v. Kyle, 11 Mo. 289; Inman v. Western Fire Ins. Co. 12 Wend. 452; Knickerbocker Ins. Co. v. Gould, 80 Ill. 389; May on Insurance, sec. 464.\nThat the delay in furnishing proof of the loss is fatal to a recovery, see Sherwood v. Agricultural Ins. Co. 10 Hun, (17 N. Y.) 593; Bell v. Lycoming Fire Ins. Co. 19 Hun, 239; Blossom v. Lycoming Fire Ins. Co. 64 N. Y. 162; Miller v. Hamilton Ins. Co. 17 id. 609; Inman v. Western Ins. Co. 12 Wend. 452; Kimball et al. v. Howard Ins. Co. 8 Gray, 33 ; Wheeler v. Field, 6 Metc. 295; Prescott Bank v. Coverly, 7 Gray, 221; Trask v. State Fire and Marine Ins. Co. 29 Pa. St. 198.\nThe law is well settled, that though the company may know of the loss, it does not excuse the giving of notice and proofs of loss, and that the conditions must be strictly complied with, unless waived. Edwards v. Lycoming Fire Ins. Co. 75 Pa. St. 378; Patrick v. Farmers\u2019 Ins. Co. 43 N. H. 621; Beatty v. Lycoming Fire Ins. Co. 66 Pa. 9." }, "file_name": "0621-01", "first_page_order": 621, "last_page_order": 627 }